A distinct feature of the Lebanese judicial system is that there are fifteen religious codes governing matters of personal law which are recognized by the state. Here, personal law pertains to matters involving marriage, divorce, custody and inheritance. In discerning the effects of these codes on the efficiency of Lebanon’s personal law system, the following question comes to mind: are different religious codes efficient when it comes to governing matters related to personal law?
The archetypical argument in favor of establishing a religious court is that personal matters related to individuals, within a certain religious sect, are governed by the laws that are based on their personal beliefs. Living in a country as religiously diverse as Lebanon, this particular set up seems practical. However, from an ‘efficiency’ perspective, we might derive a different conclusion. The concept of bringing efficiency into the law is very much rooted in an interdisciplinary approach involving both law and economics. Efficiency is a cornerstone in many economic models and is a large force behind economic rationale. Briefly, it refers to an economic state in which no one is made better off without making anyone else worse off. In applying the concept of efficiency to religious courts, I expect to run into some trouble, given that many religious laws are governed by scriptures, and strict codes of conduct that often lack flexibility in their application. Nonetheless, the endeavour should be interesting. In this article, the answers to the aforementioned question of course are not conclusive as it requires a much more thorough analysis and a wider application.
In answering the posed question, it is important to place these religious codes in the context of the religion that they correspond to. Different religions have different legal procedures when it comes to the personal matter of divorce. For example, the Catholic Church in Lebanon and its courts prohibit divorce as it is seen as a religious sin. From an economic perspective, we can look at marriage as a contract, which it arguably is. The economic theory of contracts suggests that breaching contracts are allowed only when it is efficient to do so. More specifically, if the costs associated with the terms of the contract begin to exceed the expected value of the contract, then the law should not impede the parties from breaching the contract. This could be applied to a scenario of divorce in Lebanon. The religious codes corresponding to the Catholic Church deny a married couple to breach their contract even when both parties find that the costs outweigh the expected benefits. To avoid this impediment, some Lebanese Catholics have switched into other religious sects to get a divorce. However, this can still results in a messy situation in some cases. For example, an individual that has switched over to another sect will remain married according to the registers of his/her previous sect because they simply changed sects before obtaining a divorce. In 2012, an article in Al-Akhbar illustrates the messy implications: “a person can marry in the Catholic Church, divorce in the Syriac Church, remarry in the Protestant Church, and divorce again, going through any sect that will have him or her.” If individuals are better off by switching to another religious code, than the previous religious code they were governed by is clearly lapsing in efficiency because the individuals were made better off under a different set of laws. It is important to note that the lack of efficiency regarding divorce is not exclusive to the Catholic Church. There are many religious regimes that are governed by rigid religious legal codes that have not evolved with society nor with time, among them Islamic law, which is often criticized as patriarchal. For example, in matters relating to inheritance, some Lebanese Sunni Muslims that only have daughters as children will convert to Shia Islam in order to benefit from a law of direct inheritance. For Sunni Muslims, if parents lack a male child, their inheritance will have to be divided across both direct and indirect family members. Alternatively, under Shia laws, even if parents only have daughters, the inheritance can remain strictly among direct family members. The same concept of efficiency here can be applied as the above. If a Sunni Muslim feels the need to move to a different set of religious codes in order to be better off, then we have identified a set of the laws that are inefficient under the Sunni religious code. Unfortunately, these laws remain rigidly in place and are a fact of daily life in Lebanon today.
In light of all this, it is important to consider if individuals switching sects is efficient in the first place. Should individuals be allowed to simply get a civil marriage? Furthermore, should Sunni laws regarding inheritance become more flexible? These are all questions that should be addressed by the Lebanese legal system and, more importantly, by religious scholars. Religion should not be perceived as devoid of efficiency. Furthermore, religious scholars should not fear the evolution of the law, but work in tandem with it. Clearly, the system of religious courts governing personal matters is lapsing in some areas. These issues should be addressed and the solutions do not need to come in conflict with religion. Efficiency should be a tool, not a sin. This article does not attempt to discuss whether or not divorce is a sin in itself; this issue is more or less irrelevant. The mentioned cases of divorce and inheritance are just an illustration of how religious courts can sometimes come at odds with the concept of efficient law. In my opinion, it is socially desirable to have our personal matters, as Lebanese citizens, governed by efficient law-making institutions, religious or otherwise.
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